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VA's DRO admitted error occurred

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Vync

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  • Content Curator/HadIt.com Elder

In August 2020, I filed a HLR for heart attack and was just called by a DRO. The DRO indicated the decision was in error because it was based solely on the wrong condition (atrial fibrillation) and did not address the heart attack at all. They will go over everything, including the strong "more likely than not" IMO from my non-VA board certified doctor. They said they would try to grant based off of the evidence of record. Of course, if granted, I would get another heart C&P for rating purposed. Should know something within the next couple of weeks.

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to add:

This Directive was amended on January 7, 2021 but does not involve much change to the original directive of 2017.
 
It seems to indicate that Residents who work at VA medical facilities might  fall under FTCA/1151.
 
However -I am not a lawyer and it seems that would depend on many other factors.

Department of Veterans Affairs VHA DIRECTIVE 1083(1)
Veterans Health Administration Transmittal Sheet
Washington, DC 20420 June 14, 2017
NOTIFICATION OF MEDICAL MALPRACTICE (TORT) CLAIMS TO INVOLVED
PRACTITIONERS
In Part:

 
"1. REASON FOR ISSUE: This Veterans Health Administration (VHA) directive
describes the duty of Department of Veterans Affairs (VA) medical facility Directors to
notify all staff whose care is the subject of a claim for medical malpractice. The
notification requirements include licensed independent practitioners, licensed
professional staff, e.g., nurses, pharmacists, contractors, trainees, and
ancillary/unlicensed providers and staff, e.g., surgical technicians, nursing assistants.
 "
 
 
It is a link your lawyer would have but they mayy not know of the recent change.
 
I have been fighting over the NPDB issue mentioned in this pdf for Years.
 
Due to a White house complaint I filed, the Office of Accountability sent a request to the Senate - maybe 2 years ago, and there is a bill there to support the complaint I made but so far  there has been no significant action on it .
 
You might want to go to your state's Disciplined doctor data base. to see if any of the doctors who treated you at VA have had changes filed against them.
 
VA violated the NPDB mandate in my case. The doctors who malpracticed on my husband were just moved to other VAMCs.
 
One had to get some special training to keep their job at VA but I believe they failed to keep their job,after the training.
 
VA has continued to violate this mandate and even GAO knows that.
 
I was in the 1997 Section 1151 Moratorium, when Section 1151, 38 USC changed.
(Gardner V Derwinski)
Your issue is far different from the 1151 claims we see here- because it was not a 1151 decision.
It is a direct SC decision on what appears to be a negligence situation.
 
I won AO DMII contributing to death DIC, as a direct SC death award, although it was never diagnosed and treated by VA in my husband;s lifetime, and that changed the 1151 DIC to direct SC DIC. The VA had to refund my 1151 offset.
 
Your case sees to be the opposite-and I have not found any case whereby the veteran succeeded in 1151 and then filed for FTCA.
 
But I am not a malpractice lawyer and they would know how you should proceed.
 
They would also advise you the bet way to handle this, if in the event of your death, the VA denied your spouse DIC, if you should die from the cardiac situation.
 
I would hope your spouse would not have to handle a FTCA /1151 death claim, even though the heart condition appears to have been directly service connected-
 
I have never seen a situation like this before.
 
 
 
 
 
 
 
 
 
 
 
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  • Content Curator/HadIt.com Elder

@Berta
I have been covered up between work and the new baby, but did a little digging in my VAMC records. I found a couple of instances where my primary care doctor (VA employee per the link you posted) did issue refills for the medication. It was a few years before I had the heart attack, but I still had many of the risk factors which were contraindicated. I'll have to get with the VAMC pharmacy and ask them for the dates of each time the medication was administered/refilled/renewed and the names of the employees who did it.

I read about the Brian Tally case while researching VA contractors vs. employees. It sounds like a good idea to contact Congressional reps and ask them to try submit legal language that treats VA contractors as employees when they are practicing medicine and making the VA responsible also. I doubt it would be retroactive and apply to my heart attack in 2019.

I did not have time to read VHA Directtive 1083(1) yet, but the summary sounds like the VA will just simply notify involved parties and not necessarily include them. Perhaps it is a courtesy because if a veteran fails to win via FTCA/1151, then it could merely be a heads up for them to contact their own legal rep and be aware of a possible state legal filing. I'll read it later. 

My 100% P&T is 10+ years old, so in my death packet I instruct my wife to file for DIC. Hopefully, I will not expire under the grounds of an FCTA/1151.

Big questions here:
I apologize for having brain fog, but I have a question regarding filing for 1151. I vaguely remember some discussion about this, but cannot remember the facts. In my case, I was already 100% P&T and filed for secondary SC for three reasons: 1. Open the S-DVI life insurance window, 2. The principle of it, and 3. Be able to claim any future secondaries/residuals which might lead to SMC one day.
  My questions are:
  1. If I am SC (either direct or secondary) for something, can I still  file an 1151?
  2. If question #1 is applicable, is it possible to win a second SC award and additional compensation payment under 1151?
  I honestly can't remember and had trouble looking for this answer. I recall someone at the VA telling me that I could request 1151 or SC, but not both. They said if I file for 1151 and win, then that becomes SC and is included in regular SC payments.

 

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I have done much research for the past 2 days on those very same questions:

1. If I am SC (either direct or secondary) for something, can I still  file an 1151?
  2. If question #1 is applicable, is it possible to win a second SC award and additional compensation payment under 1151?"

Also you stated:
 " I honestly can't remember and had trouble looking for this answer. I recall someone at the VA telling me that I could request 1151 or SC, but not both. They said if I file for 1151 and win, then that becomes SC and is included in regular SC payments."

That is not exactly correct- I filed for both 1151 and direct SC death, as a widow, and many vets file claims that way as well. Also a 1151 award is an '"as if SC " award.

In your case you appear to have a direct SC award ( due to malpractice)I have never seen that before.

I even prepared a brief statement that, if you try to obtain a lawyer, it is something they should consider:

I suggest that you approach a malpractice lawyer in this way.

Tell them that you received an award recently of secondary direct service connection for a malpracticed condition, as the award enclosed or attached etc, reveals.

Tell them this was not filed as a Section 1151, 38 USC claim.

Ask them "Can I also file a FTCA claim as I am still within the Statute of Limits?"

(I have no idea how that would work)

 

And ask them "Or should I file a 1151 claim on the same basis? Because I would also need your representation on this:

 I believe VA General Counsel Precedent Opinion # 08-97 fully would apply to my issues, meaning there could be no 1151 offset etc: if I am awarded under 1151 as well as direct SC:

https://www.va.gov/ogc/opinions/1997precedentopinions.asp

In part:

.”  We have previously concluded that the language and history of section 1151 reflect a con-gressional intent that all disability and death compensation and dependency and indemnity compensation (DIC) benefits payable for service-connected disability shall also be payable for disability within the scope of section 1151.”

As the opinion concludes:

“HELD:

 

“Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.”

The key word is “and” and the opinion describe clearly Congressional intent.

I have added the regulation re: the 3.310 reference” thus:

Ҥ 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a)    General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.”

-----------------------

A lawyer might see since you were compensated, and feel there might be no avenue to pursue great enough for the lawyer to get a good sized fee- but there is an avenue they can pursue-

via the VA OGC Prec Op # 08-97- I might even need a lawyer myself to fight this issue.

I really don't feel I need one but that depends on what BS i get from the VA.

Va is bound by OGC Precedent Opinions.That is why they continue to ingore the opinion in my case.

If a veteran gets "as if"SC  ( or widow like me) under 1151, and then subsequently gets a direct SC award for more malpractice, but files it under direct SC, the Prec Op gives them the benefit of receiving the VA SC comp and also the 1151 comp-BUT the problem is there are no cases like mine and no one else as far as I know, has ever challenged the VA to apply it to their claim.

So I would think you should file an 1151 claim, but the lawyer might have a better take on this-

to add-

The FTCA statute of limits depends on when you became aware of the malpractice. 

I have been neglecting my own VA issues. They claim I never filed 2 claims- but I have proof I filed 3 claims Also the OGC is aware of my Prec Op #08-97 issue-and the fact that the VA is bound to accept it as evidence, but I have not had time to follow that up and need to and will be taking some time away from hadit to do that.....over the next few weeks-

You and I are sort of in the same boat- but in such  a different way.

I don't know how to answer your 2 questions.

A veteran can raise any possible theory of entitlement.That is why whoever told you this is wrong

 "I recall someone at the VA telling me that I could request 1151 or SC, but not both."

Many widows of vets (Thank God your wife will get DIC) claim more then one theory of entitlement to DIC. Veterans can as well.

If they do not succeed under one theory, they might succeed on the other theory which should have the same EED for each theory.

 

 

 

 

 

 

 

 

 

 

 

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  • Content Curator/HadIt.com Elder

@Berta,
I really appreciate the information. 

The magic word "and" does appear promising:

Quote

“Disability compensation may be paid, pursuant to 38 U.S.C. § 1151 and 38 C.F.R. § 3.310, for disability which is proximately due to or the result of a disability for which compensation is payable under section 1151.”

 

M21-1 still directs the VA to combine 1151 disabilities with regular SC disabilities

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014567/M21-1,-Part-IV,-Subpart-ii,-Chapter-2,-Section-G---Benefits-Under-38-U.S.C.-1151

Quote

IV.ii.2.G.6.e.  Combining the Disability Ratings of Qualifying 1151 Disabilities and SC Disabilities

Combine the disability rating(s) assigned to disabilities for which compensation is payable under 38 U.S.C. 1151 with the disability ratings assigned to SC disabilities, as if the former were SC.
 
If two or more disabilities (at least one being a qualifying disability under 38 U.S.C. 1151) are rated zero percent disabling but interfere with the Veteran’s employability, the assignment of a 10-percent disability rating under 38 CFR 3.324 is acceptable.
 
Note 38 U.S.C. 1151 disabilities may serve as the basis of an individual unemployability award.
 

 

This veteran was SC for a disability, filed an 1151 for the same disability, the BVA denied it due to pyramiding.

Quote

https://www.va.gov/vetapp16/Files6/1648042.txt

The Veteran is already being compensated for the disabilities for which he is seeking § 1151 compensation. He has not established that he has any other additional disability outside of what he is service-connected for that would be a qualifying additional disability for which compensation under § 1151 could be granted. In essence, 38 U.S.C.A. § 1131 and 38 U.S.C.A. § 1151 provide separate and alternative methods of obtaining VA compensation benefits. Because the Board has granted service connection for the Veteran's thoracic/lumbar disability and a mental disability under the provisions of 38 U.S.C.A. § 1131, the matter of the Veteran's alternative claim of entitlement to compensation benefits for any thoracic/lumbar disability and a mental disability manifested by the same symptoms under 38 U.S.C.A. § 1151 is rendered moot. Indeed, any separate compensation for thoracic/lumbar disability and/or a mental disability would constitute pyramiding under 38 C.F.R. § 4.14.

 

Based on VAOPGCPREC 8-97, it appears the BVA effectively limited that veterans benefits (per last sentence) and did not treat the 1151 benefit request as being "in addition to" or "ancillary", but it also limited it to be subject to the general compensation benefits as regular SC compensation.

Quote

6.  We have construed section 1151 to authorize payment of all disability compensation and DIC benefits under chapters 11 and 13 of title 38, United States Code, including compensation and DIC benefits under those chapters which may be considered “ancillary” benefits because they are payable in addition to the general compensation benefits authorized by 38 U.S.C. §§ 1110 and 1131 or the general DIC benefits under 38 U.S.C. § 1310.  That construction implements the plain language of section 1151, which authorizes payment of “disability or death compensation under [chapter 11] and dependency and indemnity compensation under chapter 13” and is not limited to the benefits provided in the general compensation and DIC provisions of 38 U.S.C. §§ 1110, 1131, and 1310. 

 

It might be worth a shot. I would assume the VA would probably follow their standard operating procedure (deny) and then it can be appealed. I guess I will need to start making some calls.

 

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The problem is no one ever used this Pres Op to challenge a 1151 issue that VA absorbed into a service connected rating.

Except me- 

The VA could not 'add' to my dead husband's 100%  P & T for SC PTSD, to include his 100% 1151 stroke.

They paid me SMC accrued due to my CUE on that issue, and also paid me 100% P & T under 1151 for 6 months, for his 1151 stroke but never rated him properly after the six months ( about 22 months more of 1151 100% -before he died)

The VA is pretty slick- they also absorb any BVA 1151 awards into the General SC Compensation amount in their annual report to Congress. I got email verification of that from the BVA itself.

If 1151 award monetary amounts had any accountability ( and they dont- I even discussed this with Dr. Bash- he agrees) that means neither Congress nor anyone else in the taxpaying public nor disabled veterans themselves  ever knows how much malpractice the VA really has had to pay out.

Couple that with the Providers who do not fall under FTCA, and the VA's refusal to honor the NPDB mandate and no one will ever now how many veterans they have harmed or killed.

In 1998 I had a talk with a lawyer from NVLSP and he told me 'if you ever succeed on direct SC death ( he knew of the 1151 and FTCA award I got ) he daid you can obtain ALL benefits under both theories of entitlement. I didnt now what he meant but obviously since the word "all" appears in that prec op 2 or 3 times- I think that is what he was referring to, as the Pres op was one of OGC most recent ones, when I conversed with him. i 1998.

Lets face it - say a vet has a 100% direct SC rating for AO IHD. 

The veteran also proves they suffered from malpractice of the AO IHD-

The direct SC rating might not have gotten so high (100 percent ) if the VA had treated him properly for IHD in the first place.

I see the OGC opinion as revealing that  the vet should not be deprived of either one of those forms of compensation. Because they qualify under VA case law and regulations, under both 1151 and direct SC.

Pyramiding- 

You cannot  build a pyramid part of the way with bricks and then use marshmallows' for the rest of it. Direct SC and 1151 "as if" SC are distinctly different compensable entitlements.

I think the BVA was wrong to use pyramiding in that case you mentioned. But I need to read the whole case...tomorrow.

M21-1MR seems to have a lack of OGC citations.... Even though OGC Prec Ops are binding on the VA.

I have never lost any of my issues yet- but they all have taken lots of time ,not to mention how many times I had to keep sending them the evidence. And waiting for someone who is literate to read it all.

If I succeed on my Prec Op 08-97 issue I will certainly fill you all in here.

If the opinion does not say what I interpret it to say- why would the OGC even have had to prepare that opinion?

It was prepared just after the Gardner moratorium because 351 was changed to 1151, and this is why OGC clarified 1151 .

38 USC 351 did not make the claimant prove VA "fault" but when I assumed my husband's Section 1151 claim after he died, I definitely proved "fault." 

 

 

 

 

 

I get angry when I deal with this crap sometimes-

 

 

 

 

 

 

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  • HadIt.com Elder
On 1/10/2021 at 9:26 AM, Vync said:

Hey Buck,
I am waiting to get the decision letter from my VA rep tomorrow, but it looks like I was awarded 60% for myocardial infarction  (i.e. MI, or heart attack). The rating criteria grants a single temporary 100% rating for three months. I saw a small retro deposit hit the bank and I calculated it to match extra SMC-S for three months. The VA would not have issued a payment unless I solidly won. I honestly was not expecting any retro at all. I was just hoping the new SC would open the door for me to purchase VA's S-DVI life insurance.

I assume that after the three month period, they used my C&P and other records to grant 60% per the METS and EF criteria. I assume the VA will deem that temporary and schedule me for another exam at some point, but that might be moot because it would not result in a change to my combined rating. 

When I get the decision letter, I am very much looking forward to reading the rating narrative explaining the errors made in the prior decision. 

 

7006 Myocardial infarction:    
During and for three months following myocardial infarction, documented by laboratory tests    100
Thereafter:    
With history of documented myocardial infarction, resulting in:    
Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent    100
More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent    60
Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray    30
Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required    10

 

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Oh Ok  Roger that  sounds like your doing your homework     keep up the good work Vync

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